RICHMOND, VA – Virginia House of Delegates Speaker William J. Howell (R-Stafford) and House Republican leaders released a legal analysis Wednesday on Governor Terry McAuliffe’s clear lack of authority to unilaterally implement Obamacare’s Medicaid expansion in Virginia. Paul D. Clement, a former United States Solicitor General who has argued more Supreme Court cases since 2000 than any lawyer in or out of government, and Erin Murphy, an experienced Supreme Court attorney, wrote the analysis.
“Whether to extend Medicaid coverage to individuals who do not fit the current statutory requirements established by Virginia law is a quintessential legislative decision. Nothing in Virginia statutory or constitutional law empowers the Governor to make that decision unilaterally, let alone to execute that decision without the requisite appropriation of funds from the General Assembly,” Clement and Murphy write in their eight-page analysis. “[T]here is simply no constitutional path for the Governor to expand Virginia’s Medicaid program without obtaining the requisite authority and appropriation of funds from the General Assembly to do so.”
Commenting on the analysis, Speaker Howell said, “Paul Clement is one of the most successful and well-respected legal minds in the country. He has a breadth of experience with constitutional law and the separation of powers at the federal level, as well as significant experience in state courts. His detailed and thorough analysis, based on the requisite statutes, case law, and the Constitution of Virginia confirms what we have believed for months: Governor McAuliffe simply does not have the legal or constitutional authority to do what he says he is going to do. Knowing this, we are prepared to challenge the Governor through all available avenues, including the court system.”
“This sound legal analysis thoroughly explains why the decision on Obamacare’s Medicaid expansion rests with the General Assembly, not the Governor,” said Delegate Rob Bell (R-Albemarle). “There are three co-equal branches of government, and the authority to make laws and spend money rests exclusively with the legislative branch. Governor McAuliffe has announced his plans to unilaterally pursue Medicaid expansion, which would defy this intrinsic understanding of the role of government, as well as a plain reading of the Constitution and Virginia law. His actions should frighten anyone interested in preserving the rule of law, checks and balances, and separation of powers.”
“Governor McAuliffe has openly stated he intends to defy the legislative branch, as well as the laws and Constitution of the Commonwealth by unilaterally implementing Obamacare’s Medicaid expansion in Virginia. This analysis details exactly how and why the Governor is blatantly overstepping his legal and constitutional authority,” said House Majority Leader Kirk Cox (R-Colonial Heights). “As the people’s elected representatives, the legislative branch cannot idly allow this executive power grab. It violates every notion the people of Virginia hold about the rule of law, separation of powers and representative democracy.”
“The Constitution solely reserves to the legislative branch the power to appropriate and spend the people’s tax dollars,” said House Appropriations Committee Chairman S. Chris Jones (R-Suffolk). “By attempting to unilaterally expand Medicaid, the Governor will no doubt have to expend funds that the General Assembly has not authorized. Doing so is a violation of the Constitution and an imposition of the executive branch on the constitutionally prescribed powers of the legislative branch that we simply cannot allow.”
In their analysis, Mr. Clement and Ms. Murphy detail the Supreme Court’s decision on the Affordable Care Act, applicable Virginia law related to Medicaid, the Constitution of Virginia and requisite case law. The full analysis can be viewed here.
Paul D. Clement is a partner at Bancroft PLLC. Mr. Clement served as the 43rd Solicitor General of the United States from June 2005 until June 2008. Prior to his confirmation as Solicitor General, he served as Acting Solicitor General for nearly a year and as Principal Deputy Solicitor General for over three years. He has argued more than 70 cases before the United States Supreme Court, including NFIB v. Sebelius, McConnell v. FEC, Tennessee v. Lane, Rumsfeld v. Padilla, Credit Suisse v. Billing, United States v. Booker, MGM v. Grokster, and McDonald v. Chicago. For Mr. Clement’s full biography, click here.
Erin E. Murphy is a partner at Bancroft PLLC. Ms. Murphy has briefed a number of significant matters in the U.S. Supreme Court and the federal courts of appeals, including the landmark constitutional challenges brought by 26 States to the Patient Protection and Affordable Care Act. This year, Ms. Murphy successfully argued McCutcheon v. FEC before the Supreme Court. Before joining Bancroft, she served as a law clerk to Chief Justice John G. Roberts, Jr., in the Supreme Court of the United States and Judge Diane S. Sykes of the U.S. Court of Appeals for the Seventh Circuit, and as a Bristow Fellow in the Office of the Solicitor General. For Ms. Murphy’s full biography, click here.